DPP v Toumngeun
[2008] VSCA 91
•29 May 2008
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 11 of 2008
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KIA TOUMNGEUN |
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JUDGES: | ASHLEY and NEAVE JJA and LASRY AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 29 May 2008 | |
DATE OF JUDGMENT: | 29 May 2008 | |
MEDIUM NEUTRAL CITATION: | [2008] VSCA 91 | |
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CRIMINAL LAW – Sentencing – Director’s appeal – Appellant pleaded guilty to two counts of recklessly causing serious injury – Injured de facto partner’s brother by throwing a chair and breaking his right arm (count 1) and swinging a bottle and causing deep lacerations to his left arm (count 2) – Sentenced to two year community based order (count 1) and 15 months’ imprisonment, wholly suspended for 18 months (count 2) – Appeal dismissed on the basis that sentences were not manifestly inadequate and within the judge’s discretion.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C J Ryan SC | Ms A Cannon, Solicitor for Public Prosecutions |
| For the Respondent | Mr P F Tehan QC with Mr S P Kennedy | Greg Duncan |
ASHLEY JA:
Neave JA will deliver the first judgment.
NEAVE JA:
Background
On 29 October 2007, the respondent, Kia Toumgeun, pleaded guilty to two counts of recklessly causing serious injury to James Jacob, the brother of his then de facto partner and a former friend.
He was sentenced by a judge of the County Court as follows: for count 1, which involved throwing a chair and breaking the victim’s right forearm, to a Community Based Order of two years duration; for count 2, which involved hitting the victim with a bottle and causing severe lacerations to his left forearm, to 15 months’ imprisonment, wholly suspended for a period of 18 months.
This is an appeal by the Director of Public Prosecutions against those sentences.
The offences occurred in July 2004, in the following circumstances. The respondent had been in a relationship with Nicole Jacob for around ten years, but their relationship had deteriorated over the year preceding the offence. They had four children, aged between two and eight years. The respondent was concerned about his partner’s care of the children and was aggrieved by her family’s influence and their drinking. On 12 July 2004, the respondent knew that Nicole Jacob and his children were at the home of Andrew Jordan in Wodonga and decided to go there. In his police interview he said that it was a school night and he wanted to know why the children were not at home. Ironically, given his concern about the Jacobs family’s use of alcohol, the respondent had been drinking.
He arrived at the house at around 9 pm. James Jacob, his mother Megan Harris, Andrew Jordan’s three children, and the respondent’s de facto partner and
their children were all there.
The respondent said that he ‘lost control’ when he saw James Jacob and Megan Harris. He picked up a chair and threw it at them. The chair struck James Jacob on the right arm, fracturing his ulna bone.
The respondent then attacked James Jacob and the two of them began to fight. In his police interview, the respondent said that during the fight, James Jacob struck him over the head with ‘a square bottle like a Tequila bottle’, which broke when he was hit on the head. The respondent was later treated for a gash to his head. The Crown conceded, and the learned sentencing judge accepted, that it was possible that this injury was caused by the bottle.
James Jacobs described what happened next as follows:
I had my arms up in front of me trying to protect myself. My head was between my arms trying to protect myself. He stopped punching me for a brief instant then swung something at me with his right hand. Something hit my left forearm but I did not feel it at the time. Suddenly blood started spurting out of my left arm going everywhere.[1]
[1]Reasons [8].
It appears that the ‘something’ the respondent swung was the same bottle. The judge said:
The description [given by James Jacobs] and the deep laceration it caused suggest strongly that the bottle was already broken. [The respondent] denied using a bottle at all. The evidence of the other witnesses in the house is deficient on the point or unsatisfactory. On the available evidence I am not able to find beyond reasonable doubt that the bottle was already broken and therefore a self-evidently very dangerous and sinister weapon. The Crown did not argue against that. Accordingly, you will not be sentenced on that basis.[2]
[2]Reasons [8].
The injuries suffered by the victim, James Jacobs, were serious. As I have said, his ulna bone was fractured by the chair. As a result of being hit with the bottle, he suffered ‘a full thickness laceration penetrating to the bone, severance of the ulna artery, severance of the ulna nerve, severance of ten muscles and tendons on
the forearm, just above the left wrist.’[3] He had to have surgery on both arms to repair the injuries.
[3]Crown opening as set out in Reasons [9].
James Jacobs gave evidence at the plea hearing that he has ongoing physical effects from the injuries, particularly to his left arm, which suffered nerve damage. He has lost dexterity in his ring and little finger on his left hand and continues to experience pain, numbness, loss of strength and a pulling sensation in his left forearm. He has scars on both arms. At the time of the plea he was participating in a pain management course at Wodonga Base Hospital. Further, he said that as a result of the attack he had nightmares, could not enjoy life and was worried about his safety. He said that he normally worked as a bricklayer on Saturdays and Sundays and that the month before he was injured he had worked for three or four days. He said that he was close to completing his apprenticeship when he was injured, but had been unable to continue, because of his injuries.
Grounds of appeal and counsel’s submissions
The Director appeals against the sentences imposed on each count, and the total effective sentence, on the basis of manifest inadequacy. As particulars of this ground his Honour is said to have given insufficient weight to general and specific deterrence and to a number of matters which aggravated the gravity of the offence. It is also alleged that his Honour gave too much weight to mitigating factors and ‘made an unwarranted departure from the sentencing standard for offences of this nature and seriousness.’
Counsel for the DPP pointed out that the maximum sentence for the offence of recklessly causing serious injury was 15 years’ imprisonment, and submitted that these offences, and particularly count 2, were serious examples of this serious offence. Counsel said that in order to justify a sentence of 15 months imprisonment on count 2 and the suspension of that sentence, much more powerful mitigating factors were required than those on which his Honour relied.
The gravity of the offences was aggravated by the fact that they occurred in a domestic setting, were motivated by the anger the respondent felt towards his de facto wife’s extended family and were fuelled by his consumption of alcohol. The victim had been permanently injured by the violent assaults.
Although conceding that his Honour’s sentencing reasons alluded to the need to condemn the offending and to considerations of general and specific deterrence, counsel submitted that the sentences imposed showed that his Honour could not have given appropriate weight to these matters. Counsel also submitted that his Honour had given too much weight to mitigating factors, including the three and a half year delay between the offending and the imposition of the sentence. Counsel said that the respondent was initially unwilling to plead guilty on count 2 and had only done so on the day that the trial was listed. By that time the charge had been reduced from intentionally causing serious injury to recklessly causing serious injury.
In the alternative, counsel for the DPP said that the Court could recognise the gravity of the offence by imposing a longer period of imprisonment on count 2, but still take account of the principle of double jeopardy applicable to DPP appeals, by wholly suspending that sentence.
Counsel for the respondent relied on the general principle that it is only in clear and rare cases of manifest inadequacy that Director’s appeals should be allowed. He also referred to the principle expressed by Callaway JA in R v Bernath that:
Where the complaint is made in terms of weight, an appellate court must be especially cautious not to substitute its own opinion for that of the judge in the absence of identifiable or manifest sentencing error … The same caution is appropriate when it is said that a sentence is manifestly excessive.[4]
[4][1997] 1 VR 271, 277.
Counsel said that his Honour’s reasons showed that he had taken account of matters aggravating the respondent’s culpability and of general and specific deterrence. In considering whether the sentence on count 2 should be wholly or partially suspended his Honour had a very broad discretion. In exercising that discretion it was appropriate to take account of the three and a half year delay between the offence and the imposition of the sentence. In addition there were significant mitigating factors in this case. The appellant had not re-offended since he committed the offences and had continued to work hard and to care for his daughter. Further, he had no convictions for offences involving significant violence and his most recent prior conviction at the time of sentencing had occurred nine years previously.
Counsel relied on the sentencing statistics for recklessly causing serious injury. [5] They showed that in the five year period 2002-03 to 2006-07, 27% of people convicted of that offence had received a wholly suspended sentence of imprisonment, 6% received a partially suspended sentence and 14% had received a community based order.[6] The terms of the wholly suspended sentences ranged from two months to three years, with the most common suspended sentence being for the period of a year.[7]
[5]Sentencing Advisory Council, Sentencing Snapshot No. 40 Sentencing Trends for causing serious injury recklessly in the higher courts of Victoria, 2002-03 to 2006-07 (February 2008).
[6]Ibid 3.
[7]Ibid 8.
Counsel referred to a number of Court of Appeal decisions which had upheld wholly suspended sentences for intentionally or recklessly causing serious injury[8] or which had increased the term of imprisonment, but made an order for its suspension, following a successful Crown appeal.[9] Counsel submitted that these examples indicated that the sentences imposed by his Honour were within the range of sentences open to him.
[8]See, for example: DPP v Coley [2007] VSCA 91 (discussed below); DPP (Vic) v Fevaleaki (2006) 165 A Crim R 524 (The respondent had pleaded guilty to one count of intentionally causing serious injury which resulted in significant subdural and frontal haematoma and removal of part of the skull. It was accepted that the catastrophic consequences of the injury had not been anticipated. A Crown appeal against a 12 month intensive correction order was dismissed. Redlich JA, who delivered the leading judgment did not express a view on whether the sentence was manifestly inadequate, but observed at [26] that it was a very serious step to imprison a person who has been dealt with and released into the community by a judge, and at [27] that the public interest in that case did not require that the term of the sentence or the manner of its service should be set aside).
[9]See, for example: DPP v Bulut; DPP v Terzi [2007] VSCA 69 (increased a sentence of 6 months wholly suspended, for intentionally causing serious injury by kicking the victim in the head, to 2 years 6 months, but maintained the total suspension); DPP v Castro [2006] VSCA 197 (Increased a four month sentence wholly suspended to a ten months sentence wholly suspended for 2 years, for recklessly causing serious injury by kicking a person in the face in the course of a soccer game. The offender, who pleaded guilty, had a prior conviction for the same offence). In both Bulut and Castro the Crown conceded that immediate custody was not required. DPP v Anderson [2005] VSCA 68 (Increased a sentence of one years’ imprisonment to 22 months, wholly suspended for 2 years for recklessly causing serious injury by a single hammer blow which fractured the victim’s skull. The respondent had 49 prior convictions, including for offences of violence, but his post-offence behaviour was a significantly mitigating factor); DPP v Hooker [2006] VSCA 95 (The respondent pleaded guilty to counts of intentionally causing serious injury and recklessly causing injury – which involved stabbing of the victims – and common assault upon three victims and received 8 months, wholly suspended, a community based order and a bond. The Court increased the sentence on the count of intentionally causing serious injury to 2 years 6 months, wholly suspended and affirmed the other sentences). Cf DPP v Tokava, [2006] VSCA 156 where the Court considered that a custodial disposition was required for an offender who had received a community based order for one count of recklessly causing serious injury and a suspended sentence of 12 months on a count of intentionally causing serious injury.
Finally, counsel said that even if the Court were to decide that the sentence was manifestly inadequate, it should not intervene, because of the significant delay in proceedings, the fact that the respondent had been at liberty for 6 months, and had been caring for two of his children and because he had completed a substantial part of the community work required by the Community Based Order relating to count 1.
Conclusion
Because the principles applicable to Crown appeals against sentence have been explained on numerous occasions,[10] I do not need to restate them. In the circumstances of this case the Crown appeal can only succeed if the sentence reveals ‘such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle’ or if the sentence is ‘so disproportionate to the seriousness of the crime as to shock the public conscience’.[11]
[10]See for example R v Clarke [1996] 2 VR 520, 522 (Charles JA) and the cases cited therein; DPP v Josefski (2005) 13 VR 85.
[11]DPP v Josefski (2005) 13 VR 85 [13] (Maxwell P). Note that the other circumstances set out in that paragraph do not apply here.
Section 5 of the Sentencing Act1991 required his Honour to take account of the effect of the nature and gravity of the offence[12] and its impact on the victim.[13] These were very serious offences. As the DPP’s counsel pointed out, they occurred in a domestic setting where Mr Jordan and the offender’s children, the offender’s de facto wife and other members of her family were present. The victim suffered serious injuries, which have had lasting effects on him.
[12]Section 5(2)(c).
[13]Section 5(2)(daa).
It is clear that his Honour took account of all these factors. As he said:
Self-evidently this is serious offending, particularly as to Count 2. You deliberately struck at your victim reckless as to the consequence of injury, thereby you recognised that some serious injury was likely. You actually caused very considerable damage which required what must have been very urgent treatment. The sentencing purposes or considerations of general deterrence, specific deterrence and the need to express condemnation of what you did are important. Although you are not to be sentenced as having knowingly slashed at your victim with a broken or jagged bottle, your moral culpability remains considerable. As a mature man, nor does your intoxication, which no doubt fed your anger and grievance against the Jacob family, very significantly reduce that.[14]
[14]Reasons [15].
On the other hand, there were significant mitigating factors, which his Honour described these as follows:
As stated, you are a 33 year old man who lives in Wodonga. You now have five children. The youngest aged 12 months, was born during a period of attempted reconciliation with Nicole Jacob. You have now parted permanently and she lives in Queensland with the three youngest of your children. One daughter, aged 10, lives with you and you share custody of another, aged 12. She lives alternatively with Nicole Jacob’s sister, with whom you have a good relationship. She stays with you at least on weekends and you see her often during the week. You miss your other children. I accept that you are a loving, caring and responsible father. You are concerned for your children’s welfare and future.
You came to Australia from Laos when four. You and your family were refugees. You have two younger brothers. You have had a difficult upbringing including, over time, a damaged relationship with your parents. There has been a recent move toward reconciliation. After leaving school at 15 you lived and worked throughout Australia, including in Perth, Canberra, Ballarat and now Wodonga. You have a good work ethic and have worked consistently, mainly in manual jobs. That has included work as a graphic artist whilst in Canberra. For two years you have been employed at Smorgon’s in Wodonga as a metal worker/welder. You are talented musician and have played professionally in a band. Your friend and housemate, Darren Westgarth, said in evidence that you encourage your children in art and music as well as in their schoolwork.[15]
[15]Reasons [12]–[13].
His Honour also referred to the respondent’s limited criminal record and to Mr Toumngeun’s ‘genuine prospects for rehabilitation.’ He said:
You have had some prior criminal history. Between May 1991 and June 1995 there are four court appearances. In 1991 you were sentenced to detention in a youth training centre. The other matters resulted in relatively small fines. There are no offences of significant violence. The last prior appearance was in 1995 for the offence of unlawfully on premises. You have not offended since this matter in July 2004; that is now about three and a half years.
In the present case his Honour was entitled to give considerable weight to the respondent’s good work history and lack of convictions for violent offences. In my opinion the Community Based Order imposed in respect of Count 1 was well within the range of sentences which could be imposed for this offence.
Despite the nature and gravity of the offence covered by count 2, I also consider that the sentence of 15 months’ imprisonment, wholly suspended for a period of 18 months, was within his Honour’s sentencing discretion.
As the respondent’s counsel submitted, this Court has imposed suspended sentences or dismissed DPP appeals against such sentences in some cases in which an offender has recklessly or intentionally caused serious injuries to their victim. In DPP v Coley,[16] for example, the respondent was convicted by a jury of one count of recklessly inflicting serious injury and sentenced to two years’ imprisonment, wholly suspended for a period of three years. The victim suffered a wound in his mid back at least 5 centimetres in length which penetrated his chest cavity and punctured his lung, as well as wounds to the front of his chest, his right forehead and several wounds to his hand. Fifteen months before committing that offence he had been convicted of assault and given a bond. Although both Vincent and Kellam JJA considered that the sentence was manifestly inadequate, they held that the appeal should be dismissed because of the respondent’s family circumstances and because he had been already been at liberty for six months. I took the view that the learned sentencing judge was entitled to exercise mercy and to impose a suspended sentence in order to take account of the seriousness of the offence, while recognising the respondent’s prospects of rehabilitation.[17]
[16][2007] VSCA 91
[17]Ibid [23]–[24] the corresponding footnotes.
The sentences imposed in the present case took account of the mitigating factors mentioned above, the respondent’s limited criminal record and his Honour’s favourable view of the respondent’s prospects of rehabilitation. In the circumstances of this case his Honour was entitled to show mercy to the respondent,[18] and to take account of the fact that he was the full time carer of one of his daughters and that he shared the care of his other daughter with her aunt.[19] As this Court recognised in DPP v Leach:
It is particularly important that this court should not devalue or deny the right of a sentencing judge to act mercifully in a case where it seems to the judge to be an instance where an opportunity for reformation of an offender ought be grasped. That, after all, may be a decision which redounds very much to the benefit of the community.[20]
[18]R v Miceli (1997) 94 A Crim R 327, 331 (Tadgell JA); R v Osenkowski (1982) 30 SASR 212.
[19]Cf R v Spiers (1983) 34 SASR 546, 549–550 (Mitchell ACJ).
[20](2003) 139 A Crim R 64, 74 [48].
Further, as Maxwell P said in DPP v Tokava:
A sentencing judge should be astute to investigate whether a non-custodial disposition is to be preferred, even in a case of a serious offence, if in the long term the community’s interest will be best served by that course. This Court should seek to promote public understanding of the fact that — apart from the interest of the individual whom it is sought to rehabilitate, an important interest in itself — there is a vital community interest in maximising the prospects of rehabilitation of an individual who has been convicted of a serious crime.[21]
[21][2006] VSCA 156, [21].
His Honour was also entitled to place some weight on the three and a half year delay between the offending and the imposition of the sentence. I do not accept the DPP’s submission that the respondent’s good record during this period should
be given limited weight, because he was then awaiting trial. His Honour appropriately regarded the lack of offending as indicating the respondent’s good prospects of rehabilitation. That factor fortifies my conclusion that neither the individual sentences imposed on the respondent, nor the total effective sentence are manifestly inadequate.
Even if I am wrong in that view, I would not consider that the sentence on either of the counts should be altered, having regard to the circumstances of the offender following the commission of these offences. As was recognised in DPP v Leach:
[T]he court retains a discretion, in an appropriate case on a Director's appeal, to decline to interfere with a sentence even though the Director has demonstrated that the sentence was so flawed as to justify overturning.[22]
[22](2003) 139 A Crim R 64, 74 [50]. See also the cases cited therein.
The respondent has not re-offended since he was sentenced, and has completed 6 months of the work required for his two year community based order. It would be inconsistent with the principle of double jeopardy which applies to DPP sentencing appeals, to re-sentence him in these circumstances.
I would therefore dismiss the appeal.
ASHLEY JA:
I agree, for the reasons stated by Neave JA, that the appeal should be dismissed.
LASRY AJA:
I also agree that the appeal should be dismissed.
ASHLEY JA:
The order of the Court is:
The appeal is dismissed.
On the assumption that the respondent seeks an indemnity certificate under s 15 of the Appeal Costs Act, such a certificate will be granted.
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